Jersey Unreported Judgments

2001/39

5 pages

ROYAL COURT

(Samedi Division)

 

13^th February, 2001

 

Before:    M.C. St. J. Birt, Esq., Deputy Bailiff, and

                                                  Jurats Le Ruez and Quérée

 

 

The Attorney General

-v-

Richard James Collie

 

 

Application by the accused, for a review of the decision of the Magistrate, made on 7^th February, 2001, not to grant an adjournment of a trial, scheduled for 22^nd February, 2001, in the Magistrate's Court, pending resolution of the issue of funding of expert reports.

 

[The accused has pleaded not guilty to 1 count of failing to stop and report a road accident; 1 count of dangerous driving; 1 count of driving after consuming excessive alcohol; and 1 count of driving without due care and attention; and guilty to 7 other motoring offences].

 

 

J.C. Gollop, Esq., Crown Advocate;

Advocate R. Juste for the Representor/Accused.

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This is an application for judicial review by Richard James Collie against a decision of the Magistrate to refuse to adjourn the trial of the prosecution against him.  We summarise the history briefly as follows.

 

2.            The defendant is charged with a number of motoring offences.  These arise out of two main incidents.  The first was at about 6.50 pm on 23^rd August when there was a collision in Tower Road.  It is said that the defendant was driving one of these cars and he has been charged with dangerous driving and failing to stop and report an accident.

 

3.            There was a further incident some ten minutes later in St. Ouen when it is said that the defendant collided with a boy on a bicycle.  He is charged with driving without due care and attention and failing to stop and report an accident.  In relation to both incidents he is charged with driving with excess alcohol.  As we understand it, he denies being the driver of the vehicle involved in Tower Road.  He admits being the driver in relation to the incident in St. Ouen but denies the charges.

 

4.            The defence wish to obtain expert evidence so as to deal with three areas of evidence produced by the prosecution.  The first is the evidence of Mr. Hubbard, the analyst who will, apparently, say that the paint on the defendant's vehicle matches the paint of the vehicle collided with in Tower Road.

 

5.            The second is that PC Paine will give evidence concerning the speed at St. Ouen as calculated by him from various matters - he was not a direct witness of the accident.

 

6.            Thirdly, PC Paine will also give evidence to the effect that the dents in the defendant's car and the car collided with in Tower Road match.

 

7.            In November Miss Juste, on behalf of the defendant, applied to the Greffier for funds out of the legal aid fund in order to obtain expert reports to deal with the three areas I have described above.  This was refused on 12^th December and a review of that decision by a more senior member of the Judicial Greffe, the Master, Mr. Wheeler, was refused on 27^th December.

 

8.            Since then the financial position of the defendant has apparently changed and Miss Juste re-applied to the Greffier on 1^st February for funds for these reports on the basis of that changed information.  In the meantime, on 7^th February, she applied for an adjournment of the trial, which has been fixed for the 22^nd and 23^rd February, but the Magistrate refused that application for an adjournment.  It is against that refusal that she now brings this application for judicial review.

 

9.            There has been one development since the Magistrate's decision.  Miss Juste told us that on 12^th February the Greffier refused to vary his decision concerning the funding of expert reports.

 

10.        We consider first whether we have jurisdiction to hear this matter.  Neither Miss Juste nor Mr. Gollop are aware of any previous case where the Royal Court has been asked to judicially review an interim or interlocutory decision of the Magistrate.  The sole exception, of course, relates to decisions concerning bail where this Court has for many years exercised a judicial review function in relation to decisions of the Magistrate to refuse bail.

 

11.        Miss Juste argues that by analogy this Court must have a general supervisory jurisdiction over the Magistrate's Court with the consequence that there is jurisdiction to judicially review any decision of the Magistrate.

 

12.        This application has come on at very short notice and neither counsel has been able to research the matter.  In particular, given that our statutes and procedures in this respect are not dissimilar to those in England it may well be that there is guidance to be obtained from English authorities.  We make no criticism of either counsel in this respect because we understand the urgency.

 

13.        However in the light of that lack of research we are reluctant to reach a final conclusion on whether we do or do not have jurisdiction, although we note Miss Juste's arguments concerning the position on bail.  For today's purposes we will assume that we have jurisdiction to judicially review a decision of the Magistrate to refuse an adjournment.  On that assumption the test, then, is the normal one of judicial review which has been stated by this Court on many occasions.  The Magistrate must have erred in law or he must have reached a decision which no reasonable Magistrate could reach.  Miss Juste argues that that is the position here.  She refers in particular to Article 6 of the European Convention of Human Rights and paragraph 3(b) of that Article which provides that:

 

"Everyone charged with a criminal offence has the following minimum rights:

(b)     to have adequate time and facilities for the preparation of his defence."

 

Miss Juste also refers to sub-paragraph (c) which provides:

 

"(c)   to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

 

14.        She refers in addition to the well-known principle of equality of arms and she asserts that in order to fulfil these various requirements it is only right and fair that the defendant should be able to obtain expert evidence to test or contradict the evidence to be given on behalf of the prosecution.

 

15.        Miss Juste made the same points essentially to the Magistrate, although they were more detailed than I have just summarised, as indeed they were to us today, and we are indebted to Miss Juste for her submissions.

 

16.        It is, however, clear from his judgment that the Magistrate considered these matters very carefully.  He gave his reasons and we cannot do justice to them in a brief summary but in essence he said that there had to be a balance between the necessary interests of the defendant and the need for the proper administration of a court of summary justice having regard to the interests of the victims.  In particular he considered whether these particular reports were essential in order that the defendant could have a fair trial.  For the reasons which he set out he concluded that they were not.  He also had regard to the fact that this matter had been delayed since August and he was anxious that it should not be delayed any longer.

 

17.        In one sense the position today is worse for Miss Juste than it was before the Magistrate because, since then, the Greffier has refused the application for funding.  It follows that, as of today, an adjournment would not achieve much because at present it is not possible for these reports to be obtained.  Miss Juste has pointed out that the defendant's financial position has improved very recently and that he would now be able to fund a report on two out of the three areas.  However, he would not be able to fund the attendance of an expert witness at Court.

 

18.        Her second alternative is that she would like to consider the possibility of judicially reviewing the decision of the Greffier to refuse funding but she accepts that this would take a reasonably lengthy period., notwithstanding the procedures of the Royal Court to accelerate judicial review actions.

 

19.        We have come to the conclusion that the careful and considered decision of the Magistrate cannot be categorised as a decision to which no reasonable Magistrate could come.  We emphasise that it is not a question of our deciding whether we would have granted an adjournment; it is a question of whether the refusal to grant an adjournment was one to which no reasonable Magistrate could come; or whether he disclosed an error of law in so doing.  We have concluded that this is not the position here.

 

20.        It follows that we dismiss the application for judicial review.  We would emphasise that the test on judicial review is of course not the same as any test which would be applied on an appeal and nothing we say today should affect any subsequent appeal in the event of a conviction one way or the other.  We have no doubt that the Magistrate will continue to bear in mind at all times the need to ensure that this defendant has a fair trial.

 

Authorities

 

 

European Convention of Human Rights: Article 6 para. 6(2)(b) & (c).

 

A.G. -v- Maltez (6^th November, 2000) Jersey Unreported.

 

A.G. -v- Quirke (22^nd April, 1994) Jersey Unreported.

 

A.G. -v- Skinner (24^th June, 1994) Jersey Unreported.